273 F.3d 380 (3rd Cir.

2001)

IN RE: UNITED STATES OF AMERICA, PETITIONER

No. 01-2562

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT
Argued November 2, 2001
November 21, 2001

On Appeal from the United States District Court for the Eastern District
of Pennsylvania (D.C. Crim. No. 00-cr-00477-2) District Judge: Hon.
Berle M. SchillerMichael L. Levy, United States Attorney, Robert A.
Zauzmer, Assistant United States Attorney, Chief of Appeals, Richard J.
Zack, (argued) Assistant United States Attorney, Philadelphia, PA 191064476, for Petitioner.
Lynanne B. Wescott, (argued) Saul Ewing Llp, Philadelphia, PA 19102,
for Respondent.
Before: Sloviter, Nygaard, and CUDAHY,* Circuit Judges
OPINION OF THE COURT
Sloviter, Circuit Judge.

This case is before us on a petition by the United States for a writ of mandamus
directing a District Judge of the Eastern District of Pennsylvania to vacate his
order transferring this criminal action against defendant Ruth Streeval to
Tennessee and to refrain from transferring the case unless the showing and
findings required by Fed. R. Crim. P. 21(b) have been made. At issue before us
is not the discretionary decision to transfer vel non but the procedure to be
followed before such a transfer order is entered.
I.

BACKGROUND
2

On August 17, 2000, Ruth Streeval and Lollie Binkley, Streeval's sister, were

On August 17, 2000, Ruth Streeval and Lollie Binkley, Streeval's sister, were
charged by a grand jury sitting in the Eastern District of Pennsylvania in a ninecount indictment with mail fraud, wire fraud, conspiracy to commit mail fraud,
wire fraud, and money laundering, and aiding and abetting. Binkley was also
charged with money laundering and criminal forfeiture. Streeval was, by
agreement, arraigned near her residence in the Middle District of Tennessee due
to her alleged poor health. She subsequently filed a motion for severance and
transfer. The judge then presiding denied the motion on February 9, 2001.

Binkley pled guilty to all counts charged, and was sentenced to twenty-seven
months imprisonment, supervised release, and payment of restitution. On May
7, 2001, Streeval, who pled not guilty, renewed her motion for severance and
transfer to Tennessee. On May 8, 2001, the District Judge who now presided
granted the renewed motion. On May 16, 2001, after a six-day stay, the District
Court denied the government's request for reconsideration of the motion to
transfer. On June 18, 2001, the government sought a writ of mandamus to
compel the District Court to reconsider its order transferring this case to
Tennessee.

In the interim, on May 29, 2001, in accordance with Fed. R. Crim. P. 21(c), the
Middle District of Tennessee received from the Eastern District of
Pennsylvania a copy of the order severing and transferring the case, the original
record of this case, and Streeval's indictment, which in turn was filed in
Tennessee. The case was docketed as 01-CR-84 and assigned to Judge Todd
Campbell, who scheduled the case for prompt trial. After Judge Campbell was
advised of the challenge to the transfer and this court's decision to hear
argument on the matter, he rescheduled the trial date to February 26, 2001.1
II.

DISCUSSION
A. Jurisdiction
5

The most hotly contested issue, and the one that gives us the most pause, is that
of our remaining jurisdiction. Of course, the District Court originally had
jurisdiction over the criminal case pursuant to 18 U.S.C. S 3231. This court has
jurisdiction over a petition for a writ of mandamus pursuant to 28 U.S.C.
S1651(a). Streeval and the District Court2 argue that courts of this circuit no
longer retain jurisdiction in this case because it has been transferred to
Tennessee.

Fed. R. Crim. P. 21(b), the rule that Streeval invoked in seeking transfer,
provides that "[f]or the convenience of parties and witnesses, and in the interest
of justice, the court upon motion of the defendant may transfer the proceeding
as to that defendant or any one or more of the counts thereof to another district."
We have interpreted the comparable civil rule to mean that when a transfer of a
case has been completed, " `the transferor court--and the appellate court that
has jurisdiction over it--lose all jurisdiction over the case.' " White v. ABCO
Eng'g Corp., 199 F.3d 140, 143 n.4 (3d Cir. 1999) (quoting 15 Charles Wright,
et al., Federal Practice and Procedure S 3846 at 357 (2d ed. 1986)). Typically,
the transferor court loses jurisdiction when the physical record is transferred.
Hudson United Bank v. Chase Manhattan Bank, 43 F.3d 843, 845-46 n.4 (3d
Cir. 1994); Wilson-Cook Med., Inc. v. Wilson, 942 F.2d 247, 250 (4th Cir.
1991) (citing Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509,
1516-17 (10th Cir. 1991)). Nonetheless, in language particularly apt here, we
have noted that "shifting papers cannot validate an otherwise invalid transfer."
White, 199 F.3d at 143 n.4; see also Warrick v. General Elec. Co. (In re
Warrick), 70 F.3d 736, 739-40 (2d Cir. 1995). Although White involved a civil
case rather than a criminal case, and thus transfer was pursuant to 28 U.S.C.
S1404(a) rather than Fed. R. Crim. P. 21(b), the language of Rule 21(b) was
taken from S1404(a) and "decisions construing that statute... provide helpful
analogies" for understanding Rule 21(b). 2 Wright, Federal Practice and
Procedure S 344 (3d ed. 2000); see also United States v. McManus, 535 F. 2d
460, 463 (8th Cir. 1976); Jones v. Gasch, 404 F.2d 1231, 1236-37 (D.C. Cir.
1967).

The government argues that this court retains jurisdiction because "the only
document of legal significance, the indictment, remains in [the Eastern District
of Pennsylvania]." Br. of Government at 7. Although a copy of the indictment
was sent to the Middle District of Tennessee, the indictment was retained
because Streeval's co-defendant had pled guilty and her sentencing had not been
concluded at that time. App. at 12-13. We need not evaluate this argument in
light of far more compelling considerations. 3

The government argues, and we agree, that this court retains jurisdiction for
purpose of evaluating the legitimacy of the transfer. In White, a magistrate
judge in the Southern District of New York attempted to transfer a case to the
District of New Jersey under 28 U.S.C. S 1404(a) by writing "so ordered" under
a stipulation signed by the judge and the parties. This court determined that
such an "inter-district transfer by stipulation" was invalid. White, 199 F.3d at
143 (emphasis omitted). We ordered the appeal transferred to the Court of
Appeals for the Second Circuit pursuant to 28 U.S.C. S1631, which allows for
transfer from an appellate court that does not have jurisdiction to one that does.

Id. at 145-46. Although we did not spell out in White general criteria for
deciding when a transfer is valid, the fact that we exercised jurisdiction over
the case when one of the parties challenged the validity of the transfer
demonstrates that we implicitly acknowledged our jurisdiction to make a
determination concerning the validity of a transfer.
9

The justification for this rule is clear. A district court cannot divest an appellate
court of jurisdiction by the mere expedient of ordering a transfer of the file
documents to any other district court without following procedures established
for such a transfer. The proposition is not a new one. Indeed, we have asserted
in numerous cases our retention of jurisdiction for purposes of evaluating the
legitimacy of a transfer. See, e.g., Solomon v. Cont'l Am. Life Ins. Co., 472
F.2d 1043, 1045 (3d Cir. 1972) (noting "when the district court has acted
without following appropriate procedural safeguards, we will... confine it in
exercising that discretion"); Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d
Cir. 1970); Swindell-Dressler Corp. v. Dumbauld, 308 F.2d 267, 274-75 (3d
Cir. 1962).4

10

This is not to say that an appellate court indefinitely maintains jurisdiction for
purposes of evaluating the effectiveness of a transfer. Obviously, once the
transferee court proceeds with the transferred case, the decision as to the
propriety of transfer is to be made in the transferee court. However, it is
preferable that there be a process that allows for prompt review of the transfer
by the court of appeals of the transferor circuit. To accomplish that, some
courts have adopted a standard procedure of automatically granting a stay of a
transfer for a specified period of time. For example, the Eastern District of
Pennsylvania, following a suggestion of this court in Swindell-Dressler, 308
F.2d at 274 n.11, promulgated a local rule whereby a transfer order is
automatically stayed for twenty days, absent expedition. See E.D. Pa. R. 3.2.5
Unfortunately, that rule does not extend to criminal cases. If it did, the current
situation would have been avoided. Even in the absence of such an applicable
local rule, and without delineating the specific length of time needed to allow
the party resisting transfer to seek review by an appropriate means, the
government acted with sufficient dispatch here that we have jurisdiction to
consider its petition for mandamus.
B. Suitability of Mandamus

11

We turn to consider whether mandamus is an appropriate means to review the

transfer in this case. In general, an order transferring a case is not a final order
and, hence, not appealable. See, e.g., Nascone v. Spudnuts, Inc., 735 F.2d 763,
764 (3d Cir. 1984).6 While 28 U.S.C. S1651(a) grants federal courts the general

power to issue writs, it is widely accepted that mandamus is extraordinary relief

that is rarely invoked. See, e.g., In re Patenaude, 210 F.3d 135, 140 (3d Cir.
2000); In re Balsimo, 68 F.3d 185, 186 (7th Cir. 1995); Solomon, 472 F.2d at
1045-46; 16 Wright, et al., Federal Practice and Procedure, S 2936.2, at 667 (2d
ed. 1996). In Will v. United States, 389 U.S. 90 (1967), the Supreme Court
discussed the exceptional nature of the remedy of mandamus and, in addition,
expressed "an awareness of additional considerations which flow from the fact
that the underlying proceeding is a criminal prosecution." Id. at 96.
Nonetheless, the Court recognized that "mandamus may... be used [in certain
circumstances] to review procedural orders in criminal cases." Id. at 97. The
Court did "not decide under what circumstances, if any, such a use of
mandamus would be appropriate," id. at 98, but suggested as relevant to that
decision "the constitutional precepts that a man is entitled to a speedy trial and
that he may not be placed twice in jeopardy for the same offense." Id.
12

This court has held that a writ of mandamus may issue to compel a district court
to vacate an order transferring a case to another district. Plum Tree, Inc. v.
Stockment, 488 F.2d 754, 756 (3d Cir. 1973); see also Swindell-Dressler, 308
F.2d at 271. More recently, the Court of Appeals for the Seventh Circuit held
that the same rule applies in the criminal context. See Balsimo, 68 F.3d at 186.
Although we have stated that mandamus relief will "rarely if ever" be granted
directed to transfer orders, as this court has aptly put it, "rarely if ever d[oes]
not mean never." Solomon, 472 F.2d at 1045. Therefore, as "[m]andamus is...
the appropriate mechanism for reviewing an allegedly improper transfer order,"
Sunbelt Corp. v. Noble, Denton & Assoc., 5 F.3d 28, 30 (3d Cir. 1994), it is
appropriate for us to consider whether we should grant the government's
petition for mandamus.
C. The Motion to Transfer

13

In deciding whether a writ of mandamus should issue with respect to an order to

transfer, we must take into consideration that, other than mandamus, the
petitioner has no means of adequate relief, Mallard v. United States Dist. Court,
490 U.S. 296, 309 (1989) (setting out the showing required for issuance of
mandamus), and that the transfer, if erroneous, may cause irreparable injury.
United States v. Wexler, 31 F.2d 117, 128 (3d Cir. 1994). As we noted at the
outset, the government does not attempt to make its arguments against the
motion to transfer before this court. Rather, it asks us to use our mandamus
power to require the District Court to reconsider its order transferring the case
and, in so doing, to follow certain procedures. Specifically, the government
requests that this court order the District Court to (1) require Streeval to meet
the burden of establishing the appropriateness of transfer by specific evidence,

(2) give the government adequate opportunity to respond to Streeval's

arguments and evidence in support of transfer, and (3) make findings and give
reasons for its decision with respect to the transfer motion.
14

In support of its petition, the government focuses on three cases decided by this
court: Swindell-Dressler, Solomon and Plum Tree. In Swindell-Dressler, a
district judge "of his own volition and without any motion or petition by one or
any of the parties, and without hearing, and without giving Swindell notice or
opportunity to be heard,... transferred [the case] to the United States District
Court for the Northern District of West Virginia." Swindell-Dressler, 308 F.2d
at 271. We disapproved the procedure followed by the district court, holding
that by "denying Swindell any hearing or opportunity for hearing the court
below denied it procedural due process of law guaranteed to it by the Fifth
Amendment." Id. at 273-74. We issued a writ of mandamus. Id. at 275.

15

In Solomon, we were again presented with a petition for mandamus as to an

order by the district judge transferring a case seeking recovery on various
insurance policies to the Middle District of North Carolina, which was the situs
of the accident that was the subject of the suit. This court interpreted SwindellDressler as holding that "when the district court has acted without following
appropriate procedural safeguards, we will by the writ [of mandamus] confine
it in exercising that discretion to the narrow path of due process." Solomon, 472
F.2d at 1045. We held, however, that the facts presented in Solomon were
distinguishable from Swindell-Dressler because "the district court proceeded
after appropriate notice, and the petitioners opposing transfer had the
opportunity to file opposing affidavits." Id. at 1046. Further, we stated that
although a writ of mandamus might appropriately issue when a case was
transferred where "nothing in the record indicates that the transferee district
will be convenient to anyone," id., the Solomon case was not of that sort, and
we thus denied the petition for mandamus.

16

In Plum Tree, the district court granted defendants' motion for a transfer to the
United States District Court for the Southern District of Texas, even though
defendants did not file any supporting documents to show that a transfer would
be appropriate. Plaintiffs, who strongly opposed the transfer, filed a petition for
a writ of mandamus. We agreed with plaintiffs, commenting that "there was no
evidence before the district court upon which it could base a finding that a
transfer order was justified." 488 F.2d at 756. In particular, defendants failed to
"support their motion to transfer with any affidavits, depositions, stipulations,
or other documents containing facts that would tend to establish the necessary
elements for a transfer," id. at 756-57, such as:

17

names and addresses of witnesses whom the moving party plans to call,...
affidavits showing the materiality of the matter to which these witnesses will
testify, statements by the moving part[y] of the business difficulties or personal
hardships that might result from... having to defend against the suit in the
district court where it was originally brought, affidavits concerning the relative
ease of access to sources of documentary evidence, and other materials where
appropriate.

18

Id. at 757 n.2. Because the district court did not have before it adequate grounds
for ordering a transfer, we ordered that it vacate the order "without prejudice to
the right of defendants on remand to renew in the district court their motion for
transfer, with appropriate supporting documents." Id. at 757.

19

Of the cases decided by this court, Plum Tree is most similar to the present
case. Streeval, the party requesting transfer, did not present "affidavits,
depositions, [or] stipulations," id. at 756, and the District Court did not hold a
hearing concerning the motion to transfer at which Streeval had the burden to
establish the appropriateness of transfer and the government had the
opportunity to respond to Streeval's arguments for transfer.

20

Streeval argues that in contrast to Plum Tree, there was evidence in the present
case to support the transfer order. She refers in particular to the fact that the
government did not oppose her motion to be arraigned in Tennessee, noting that
the FBI had observed that she appeared at her arraignment in a wheelchair, and
that not only is she herself handicapped but that she is the caretaker for her ill
husband. She points out that the government's list of witnesses filed in the
Eastern District of Pennsylvania included only some witnesses from the
Philadelphia area but also some from Tennessee and others that are
geographically dispersed. She also asserts, but without specificity, that any
evidence for the defense would be located in Tennessee, and notes that none of
the offenses is alleged to have been committed in Pennsylvania. App. at 29-30.

21

Because the government abjures arguing the merits of the transfer, its focus is
on the procedure followed by the District Court before it ordered the transfer.
Whether to transfer a case is generally committed to the discretion of the
district courts. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). We
have been reluctant to put specific requirements on the process by which the
district courts decide motions to transfer, see, e.g., Solomon, 472 F.2d at 104748; Plum Tree, 488 F.2d at 756; White, 199 F.3d at 144, undoubtedly because
of concern that imposition of stringent procedural hurdles might interfere
unduly with the exercise of the courts' discretion.

22

On the other hand, the case law suggests that there are certain minimum
procedures that should be followed before ruling on a motion to transfer. It
would appear evident that the party objecting to transfer must be given an
opportunity to rebut the arguments and the evidence, if any, offered by the
movant in favor of transfer. Also, it is helpful when the district court provides a
statement of reasons for granting the motion to transfer so that the appellate
court has a basis to determine whether the district court soundly exercised its
discretion and considered the appropriate factors. See generally United States v.
Criden, 648 F. 2d 814, 819 (3d Cir. 1981). It is not necessary that the transfer
order be accompanied by a lengthy statement--such as the eight-page opinion in
United States v. Coffee, 113 F. Supp. 2d 751 (E.D. Pa. 2000), describing the
court's reasons for transferring a case -- as long as there is a sufficient
explanation of the factors considered, the weight accorded them, and the
balancing performed.

23

Most important is that the district court's explanation for the transfer
demonstrate that the court recognized the nature of the showing that must be
made to support a transfer and the parties' respective burdens. In Platt v.
Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964), a criminal antitrust case,
the Supreme Court enumerated ten factors that should be considered by a court
in deciding whether to transfer a case. They are:

24

(1) location of [the]... defendant; (2) location of possible witnesses; (3) location
of events likely to be in issue; (4) location of documents and records likely to be
involved; (5) disruption of defendant's business unless the case is transferred;
(6) expense to the parties; (7) location of counsel; (8) relative accessibility of
[the] place of trial; (9) docket condition of each district... involved; and (10) any
other special elements which might affect the transfer.

25

Id. at 243-44 (quotation omitted). Although Platt involved a corporate

defendant, the ten Platt factors are used in cases involving individual
defendants as well. A balance should be struck among the most important
factors in the particular case to determine whether transfer is appropriate. See,
e.g., United States v. Stephenson, 895 F.2d 867, 875 (2d Cir. 1990).

26

As to the burdens of proof, this court has stated in 28 U.S.C. S 1404(a) cases
that "[t]he burden is on the moving party to establish that a balancing of proper
interests weigh in favor of the transfer." Shutte v. Armco Steel Corp., 431 F.2d
22, 25 (3d Cir. 1970); see also Jumara v. State Farm Ins. Co., 55 F.3d 873, 879
(3d Cir. 1995); Elbeco Inc. v. Estrella de Plato, Corp. 989 F. Supp. 669, 679
(E.D. Pa. 1997); 15 Wright et al., Federal Practice and Procedure S 3848, at
383 (2d ed. 1986). While the burden is on the defendant, the defendant is not

required to show "truly compelling circumstances for... change....[of venue, but

rather that] all relevant things considered, the case would be better off
transferred to another district." Balsimo, 68 F.3d at 187.
27

It is not surprising given the similarity between the language of S 1404(a)

providing the standard governing transfer of civil cases ("[f]or the convenience
of parties and witnesses, in the interest of justice") and that of Rule 21(b)
governing transfer of criminal cases ("[f]or the convenience of parties and
witnesses, and in the interest of justice"), that the courts have held that the
criminal defendant has the burden of making the case for transfer. See, e.g.,
United States v. Spy Factory, Inc., 951 F. Supp. 450, 464 (S.D.N.Y 1997) ("
`[T]he burden is on the moving defendant to justify a transfer under Rule
21(b).' ") (quoting United States v. Aronoff, 463 F. Supp. 454, 461 (S.D.N.Y.
1978)); United States v. Washington, 813 F. Supp. 269, 275 (D. Vt. 1993);
United States v. Long, 697 F. Supp. 651, 656 (S.D.N.Y. 1988), rev'd on other
grounds 917 F.2d. 691 (2d Cir. 1990); United States v. Wheaton, 463 F. Supp.
1073 (S.D.N.Y. 1979); Aronoff, 463 F. Supp. at 461; United States v. Ashland
Oil, Inc., 457 F. Supp. 661, 665 (D. Ky. 1978) (denying defendant's request to
transfer case to the district of his residence in light of his ill health because his
health was not so severely impaired, he was not bedridden, and he had not been
hospitalized); see also 2 Wright, Federal Practice and Procedure S 344, at 403
(3d ed. 2000) ("[I]t is proper to require the defendant, as the moving party, to
carry the burden of showing why a transfer would serve the purposes specified
in [Rule 21(b)]"); 25 James Wm. Moore et al., Moore's Federal Practice S
621.04[2], at 621 19 (3d ed. 2001) ("To obtain a `convenience' transfer
pursuant to Rule 21(b), the defendant must show that litigating the trial in the
district from which transfer is sought... either burdens the defense or creates
undue prejudice against the defendant.").

28

It is important not to overlook the Supreme Court's statement in Platt that a

defendant is not entitled to defend his case in his or her home district. See Platt,
376 U.S. at 245-46. That proposition has been frequently relied on as one of the
bases for denying transfer in criminal cases, see, e.g., United States v. Bittner,
728 F.2d 1038, 1041 (8th Cir. 1984); United States v. Kopituk, 690 F.2d 1289,
1322 (11th Cir. 1982); United States v. Espinoza, 641 F.2d 153, 162 (4th Cir.
1981).

29

In this case, the government complains that the District Court granted Streeval's
motion for a transfer, even before the government received a copy of the
motion, without waiting for the government's response, and that the court acted
by filing a one-line order that gave no reasons for the transfer. While the
government's frustration is understandable, these omissions would not in

themselves warrant mandamus. Under the procedure in Swindell-Dressler, the

government had an opportunity to put forth its argument in opposition to the
transfer in its motion for reconsideration. Admittedly, it may be more difficult
to persuade a judge that a decision already made to transfer the case should be
vacated than it would have been to persuade the judge not to transfer in the first
instance, but nothing in the record suggests that the District Court did not
consider the government's arguments on reconsideration.
30

Similarly, while the initial transfer order dated May 8, 2001 was devoid of
explanation for the decision, and the second order dated May 16, 2001 merely
denied the motion to reconsider the transfer order, again without explanation,
the District Court did use the vehicle of our Local Rule 3.1 to file an
explanatory Memorandum dated June 19, 2001. Once again, the sparseness of
the prior orders does not warrant mandamus in light of the subsequent attempt
to fill the vacuum. Mandamus is only appropriate when the district court has
committed a clear abuse of discretion or clear error of law.

31

On the other hand, it is the government's complaint that the District Court
ordered the case transferred without requiring Streeval to bear the burden of
establishing that transfer was appropriate that causes us concern. Although the
District Court referred to many of the relevant factors, if in fact the court was
unaware that the burden to show reasons for the transfer was on the defendant,
then the misconception would be serious enough to warrant mandamus. The
burden of proof is often the determinative factor in a discretionary decision,
particularly in one where the factors may be closely balanced. It is important
that an appellate court performing its review function be satisfied that the
District Court recognized where the burden lay. Here, Streeval has not pointed
to anything in the record or in the District Court's memorandum that indicates
that the District Court placed the burden on Streeval. The government
complains, for example, that Streeval has neither identified nor produced
documents that allegedly show relevant activities took place in Tennessee; that
she has not identified witnesses in Tennessee whereas it has, such as
Wentworth, one of the principal victims of the fraud, who is in or near the
Eastern District of Pennsylvania; and that she has not produced adequate
evidence that it would be physically burdensome for her to be tried in
Philadelphia.

32

We recognize that the District Court may indeed have placed the burden on
Streeval and have balanced the factors to reach its decision to transfer the case
to the Middle District of Tennessee, but we have no basis to so hold on the
record before us. Under the circumstances, we will remand this matter to the
District Court for reconsideration, requiring Streeval to bear the burden of

showing why transfer is appropriate. We express no opinion as to the merits of

a transfer. At argument the government conceded that once the District Court
evaluated the factors in light of the appropriate burden, there would be no basis
for it to file another mandamus petition.
33

In light of the scheduled trial date in Tennessee and our desire to be reciprocally
accommodating to the District Court in Tennessee, we will direct the District
Court on remand to require the parties promptly to present their arguments and
supporting data, and to rule no later than the end of the calendar year. 7
III.

CONCLUSION
34

Because we cannot be sure that the District Court followed appropriate

procedure before transferring this case to Tennessee, we will issue a writ of
mandamus ordering the District Judge to reconsider Streeval's motion to
transfer in accordance with the procedure set out in this opinion.

NOTES:
*

Hon. Richard D. Cudahy, United States Court of Appeals for the Seventh
Circuit, sitting by designation.

We are most appreciative of Judge Campbell's accommodation, which enabled

this court to consider the matter and prevented an unseemly tension between
federal jurisdictions. We undertook to rule on the appeal as promptly as
possible.

The District Court, exercising the option accorded to it by 3rd Cir. R. 3.1
(2001), which allows a district judge to file an opinion or memorandum to
explain an order or decision after an appeal is taken, filed a memorandum that,
in addition to summarizing the reasons for transfer, includes arguments why
this court should not grant mandamus, more akin to an adversarial brief of a
party than a "written amplification" of a prior order for which the Rule is
designed.

The government also argues that the transfer was invalid because the District
Court's order transferred the case to the "non-existent `District of Tennessee.' "
Br. of Government at 14. Although the District Court did not specify to which
of the three judicial districts in Tennessee the case was being transferred, it was

clear from the context of this case and the fact that Streeval was arraigned in
the Middle District of Tennessee that the Middle District was the intended
transferee district; indeed, the court clerk did send the relevant papers to that
district. The government does not cite any case that suggests that a transfer will
be invalidated on such a minor technical point and we are not persuaded by this
aspect of the government's argument.
4

While all these cases are civil cases and thus involved transfer under 28 U.S.C.
S 1404(a), as noted above, the language in rule 21(b) is analogous to S 1404(a).

See, e.g., D. Conn. R. Civ. P. 18 (directing the court clerk to wait until the
eleventh day following the order of transfer to mail the papers). S.D. &
E.D.N.Y.R. Civ. P. 83.1 (requiring the court clerk to wait five days before
transferring a case to another district); see also Roofing & Sheet Metal Servs.,
Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 988-89 n.10 (11th Cir. 1982);
Semro v. Halstead Enters., Inc., 619 F. Supp. 682, 683 (N.D. Ill. 1985) (noting
that "the [c]lerk in this district has a general policy of holding transfer papers
for at least thirty days" before transferring to afford non-moving party an
opportunity to seek mandamus review); 15 Wright, et al., Federal Practice and
Procedure S 3846, at 357 (2d ed. 1986) (endorsing the practice of granting a
stay of transfer in the civil context for a sufficient period to allow for an
opportunity to file for appellate review).

See also United States v. French, 787 F.2d 1381, 1384 (9th Cir. 1986); United
States v. Nat'l City Lines, 334 U.S. 573, 574 (1948) ("[I]t is... doubtful whether
the government ha[s] a right to appeal from [an] order of transfer in [a] criminal
case.").

At oral argument, Streeval's counsel informed the court that her client was in
the hospital and would be unable to attend an evidentiary hearing in
Philadelphia. While regrettable, we do not regard this as a basis for delay. It is
not necessary that the District Court hold an evidentiary hearing before ruling.
Streeval may seek to meet her burden as to the transfer by submission of
affidavits attesting to her medical condition and her inability to travel to a
criminal trial in Philadelphia.